Tracy Larmont Johnson v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Bray
Argued at Norfolk, Virginia
TRACY LARMONT JOHNSON
v. Record No. 0941-94-1 MEMORANDUM OPINION *
BY JUDGE SAM W. COLEMAN III
COMMONWEALTH OF VIRGINIA AUGUST 1, 1995
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
William F. Rutherford, Judge
(Robert E. Frank, on brief), for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General,
on brief), for appellee.
Tracy Larmont Johnson was convicted of distribution of
cocaine and distribution of cocaine within one thousand feet of a
school. He contends that the prosecution unconstitutionally
exercised its peremptory challenges to remove black persons from
the venire. We hold that the trial court did not err in finding
that the prosecutor offered facially neutral, nondiscriminatory
reasons for exercising her strikes. Therefore, we affirm the
convictions.
During jury selection, the Commonwealth's attorney
peremptorily struck three black persons from the venire, Gerald
Parker, James Graham, and Elsie Stewart. The appellant made a
Batson motion, stating:
I think after the strikes for cause, we
ended up with a panel that was almost evenly
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
split black and white. Of course, we have a
black defendant here, and three of the
Commonwealth's strikes were of blacks. I
think that in and of itself raises an issue
about the fairness of the panel, and we
challenge it on those grounds.
The trial judge then asked the prosecutor to give her reasons for
striking the black members of the venire.
The Commonwealth's attorney explained that she struck Gerald
Parker because he was a convicted felon, regardless of the fact
that the governor had restored his civil rights. She stated that
she struck James Graham because he did not have a job, was a
student, and was the youngest person on the panel. Explaining
Graham's strike, she stated that, in general, students tend to
involve themselves in drugs more than working people and have a
more liberal attitude about drug use. Finally, the
Commonwealth's attorney stated that she struck Elsie Stewart
because Stewart's son had been prosecuted for a crime and Stewart
sounded as though she was denying her son's responsibility for
the events. The Commonwealth's attorney further explained that
her strike of Stewart was based on a similar unsatisfactory
experience with a mother serving on a jury while her son was
charged with a felony.
A defendant is constitutionally entitled to a jury panel
whose members have been selected on a racially nondiscriminatory
basis. Batson v. Kentucky, 476 U.S. 79, 85-86 (1986).
"The defendant must make a prima facie
showing that the prosecutor has exercised
peremptory strikes on the basis of race."
Powers v. Ohio, 499 U.S. 400, 409 (1991).
-2-
"If this showing is made, the burden shifts
to the prosecutor to articulate a racially
neutral explanation for striking the jurors
in question." Batson, 476 U.S. at 96-97.
"If the court determines that the proffered
reasons are . . . [race and gender] neutral,
the defendant should be afforded an
opportunity to show why the reasons, even
though facially . . . neutral, are merely
pretextual and that the challenged strikes
were based on race [or gender]." United
States v. Joe, 928 F.2d 99, 103 (4th Cir.
1991). "But, ultimately, the trial court
must determine whether the defendant has
carried his burden of proving purposeful
discrimination." Batson, 476 U.S. at 98.
Robertson v. Commonwealth, 18 Va. App. 635, 637-38, 445 S.E.2d
713, 714 (1994).
Assuming that the defense made a prima facie showing that
the prosecution exercised her peremptories on the basis of race,
the burden was on the prosecution to "articulate a neutral
explanation related to a particular case to be tried." Batson at
96-98. A prosecutor may base the peremptory challenge decision
on such considerations as age, Barksdale v. Commonwealth, 17 Va.
App. 456, 460, 438 S.E.2d 761, 764 (1993) (reh'g en banc), or
even hunches or personal experience, State v. Harris, 842 S.W.2d
953, 955 (Mo. App. 1992), as long as the reason is not purposeful
or deliberate exclusion from the jury on account of race. Batson
at 84. "Unless a discriminatory intent is inherent in the
prosecutor's explanation, the reason offered will be deemed race
neutral." Purkett v. Elem, 115 S. Ct. 1769, 1771 (May 15, 1995)
(citing Hernandez v. New York, 500 U.S. 352, 360 (1991)).
"If a race neutral explanation is tendered the trial court
-3-
must then decide [] whether the opponent of the strike has proved
purposeful racial discrimination." Purkett, 115 S. Ct. at
1770-71. The trial court's decision on the question of
discriminatory intent is a finding of fact. Barksdale, 17 Va.
App. at 460, 438 S.E.2d at 764. "Deference to trial court
findings . . . makes particular sense in this context because
evaluation of the prosecutor's state of mind based on demeanor
and credibility lies peculiarly within a trial judge's province."
Barksdale, 17 Va. App. at 460, 438 S.E.2d at 764 (quoting
Hernandez v. New York, 500 U.S. 352, 365 (1991) (citation
omitted)). "[W]e consistently have given deference to a trial
court's findings during jury voir dire, and will not disturb
those findings absent a showing of manifest error or abuse of
discretion." Faison v. Hudson, 243 Va. 397, 402, 417 S.E.2d 305,
308 (1992).
The trial court did not err in finding that the prosecutor
offered facially neutral, nondiscriminatory reasons for striking
Parker, Graham, and Stewart from the venire. Her reasoning
focused on criminal background, age, past experience, and
demeanor of the potential jurors. Having articulated race-
neutral criteria, there is "nothing left to review." Hernandez,
500 U.S. at 367. We find no error or abuse of the trial court's
discretion.
We, therefore, affirm the decision of the trial court.
Affirmed.
-4-